Secession from the European Union and Private International Law Adrian Briggs 1. In the six or seven months since the referendum, the future of commercial litigation in England has been pondered and discussed, in many fora, as well as before the Committee. It seems fair to say that the general view is (1) that secession from the European Union represents, for commercial law and commercial lawyers, a serious loss; (2) that the only way to repair the damage, at least in part, will be to persuade the European Union to replicate the substance of the existing rules as found, in particular, in the Brussels I Regulation, Regulation 1215/2012; and (3) that on the issue of why the European Union might agree to this, the general tenor of advice appears to be that it is what reasonable people would agree to do, it being clear but unsaid that the European Union may not see a need to do what the British commentators see as reasonable. 2. The approach taken here is that points (1) and (2) are true, if only on balance; but that (3) seriously under-estimates the rational bargaining position of the United Kingdom. 3. That said, it is disconcerting to hear how often it is said that our legal system, commercial courts, judiciary, law, lawyers, et cetera, are the best in the world, with the implicit message that this is the reason why no-one need worry: the objections to such complacency are not diminished by the assertion that there is no complacency. What should surely be done is to work out what we want, and how, realistically, we may get there. We have a once-in-a generation opportunity to compare the rules of private international law which we currently have with what we might instead have, and to take stock. When that is done, the path ahead will be seen to be rather clearer and brighter than some others have suggested. One certainly hears people suggesting that secession from the European Union is going to have a damaging effect, but for our private international law, if we think carefully about it, the truth may well be otherwise. (A) The issues in summary form 4. Here is what we have so far. The government says that it intends to repeal the European Communities Act 1972. This will cut the strings which tie Regulations of the European Union into the legal order of the United Kingdom: that means the end of the major Regulations which are, rather oddly, named after towns and cities: Brussels I (jurisdiction and judgments),1 Brussels II (matrimonial decrees and parental QC (Hon); Professor of Private International Law, University of Oxford; Sir Richard Gozney Fellow and Tutor in Law, St Edmund Hall, Oxford; Barrister (Blackstone Chambers, Temple). I am grateful for the opportunity to express these views which were, in substance, delivered in a lecture to the Commercial Bar Association on 24th January 2017. - 1 - responsibility),2 Rome I (law applicable to contractual obligations),3 Rome II (law applicable to non-contractual obligations).4 It will also apply to the Lugano II Convention5 on jurisdiction and judgments between the EU (not the Member States as such) and Iceland, Norway and Switzerland, for the United Kingdom is not a state party to this Convention which was concluded by the EU, and not by its Member States. 5. Withdrawal and repeal of the 1972 Act will also cut the cord for those other6 hybrid European Regulations which deal with jurisdiction, applicable law and recognition, most notably in the fields of Insolvency7 and Maintenance.8 It will also disable the Evidence Regulation,9 the Service Regulation,10 as well as several other instruments of lesser daily importance but which assist small claims or proceedings in which the claim is unanswerable and unanswered. 6. Repeal of the 1972 Act will not, technically at least, affect the Brussels and Rome Conventions, which were made as international treaties and enacted in the United Kingdom by primary legislation.11 It is therefore possible to argue, as some have argued, that these could rise from the dead and that all interested parties in the United Kingdom, in Europe, and in Luxembourg in particular, would instantly agree that this had taken place, even as the United Kingdom had declared its independence from the authority of the European Court: possible to argue, yes, but in the highest degree unlikely. Although some very serious colleagues have looked at the technicalities,12 if one is being realistic about it, the idea is not credible.13 It would require the Member States, and the European 1 The current version, Regulation (EU) 1215/2012 superseded, as between the Member States, (Art 68) Regulation (EC) 44/2001. Quite why the word ‘recast’ appears in parenthesis in the title of Regulation 1215/2012 is not clear, but the terminology has proved durable. 2 Regulation (EC) 2201/2003, which repealed (Art 71) Regulation (EC) 1347/2000. 3 Regulation (EC) 593/2008. 4 Regulation (EC) 864/2007. 5 Printed in [2007] OJ L339/1. 6 Other, because to some extent, Brussels II is one of these. 7 Regulation (EC) 1346/2000, which is ‘recast’ by Regulation (EU) 848/2015. In this case, the recast Regulation repeals (Art 91) the earlier Regulation, though preserving it in legal effect (Art 84(2)) for proceedings opened prior to the commencement date of the recast Regulation. 8 Regulation (EU) 4/2009. 9 Regulation (EC) 1206/2001. 10 Regulation (EC) 1393/2007, which (Art 25) repealed Regulation (EC) 1348/2000. 11 Civil Jurisdiction and Judgments Act 1982 and Contracts (Applicable Law) Act 1990, respectively. 12 In particular Professor Dickinson (2016) 12 JPIL 195; Masters & McRae (2016) 33 J Int Arb, Special Issue, 483; Sir Richard Aikens and A Dinsmore (2016) 27 EBLR 903. 13 The Brussels Convention was a treaty between the Contracting States of the EEC, which they were directed to conclude, in general terms at least, by Art 220 of the Treaty of Rome. It was, as between the Member States, superseded by Regulation 44/2001 (see Art 68) except as it continued to apply to territories (such as Aruba, Tahiti, St Pierre & Miquelon) to which the Regulation did not extend, and to Denmark (defined as not being a Member State by Art 1(3)). As between the Member States, it was not said to be superseded for only so long as they remained Member States. The Regulation could not and did not declare the Brussels Convention to be repealed, for it is hard to see how a Regulation could repeal a Treaty. It was plainly intended that the Convention cease to operate as between the Member States, and that, therefore, the Regulation brought it to a final legal end as between the United Kingdom and the other states to which the Regulation then applied. There is no indication to be had from the Brussels Convention that it was ever - 2 - Union, which means the European Court, to agree on the analysis, and that is not on the cards. Neither is it desirable, for our law would not be in better shape if the Brussels Convention were restored to the register.14 It should be put aside. 7. This is the loss for private international law and lawyers. The government has, however, said that it will, where it is practicable to proceed this way, re-enact the laws whose strings it has just cut, adopting the orphaned texts and making them as laws of the United Kingdom on the direct authority of Parliament at Westminster. In practical terms, this makes a lot of sense: it is, after all, similar to what was done by various states which became independent of the United Kingdom as colonial power. It seems in our case to mean several things. 8. First, the United Kingdom could and should re-enact the text of the Rome I and Rome II Regulations on the law applicable to contractual and non-contractual obligations. These are private international law rules for determination of the applicable law; they do not limit their scope to person or contracts connected with the Member States. The question which arises, and which will be answered shortly, is whether it would be better to do this or to go back to what was there before. We should therefore ask which set of rules – Regulation or pre-Regulation – offers the better way for an English court to approach the identification of the applicable law for contractual and non-contractual obligations. It is an easy question to answer. 9. Second, where the hybrid Regulations on matrimonial and parental matters, insolvency, and maintenance, are concerned, local re-enactment is impracticable. However, where matrimonial and parental, and maintenance, issues are concerned, it is not hard to imagine that a parallel copy instrument should be agreed on all sides. There is no commercial interest at stake, just the personal lives of adults and children. It raises issues entirely separate and distinct from the rather more controversial commercial issues which arise in relation to Brussels I, Lugano II, Rome I and Rome II, and is therefore not pursued here in any detail. intended to operate in relation to a state which was not a contracting (now member) state; no indication to be had from the Regulation which superseded it that the supersession was intended to be provisional or temporary. As far as the other Member States are concerned, the United Kingdom will be, by its own choice, a non-Member State. Article 68(1) provides that Regulation 44/2001 ‘shall, as between the Member States, supersede the Brussels Convention, except as regards the territories of the Member States which fall within the territorial scope of that Convention and which are excluded from this Regulation pursuant to Article 299 of the Treaty’.